PROSPECTS FOR IMPLEMENTATION OF MEDIATION’S INSTITUTE IN UKRAINE
Journal Title: «Приватне та публічне право» - Year 2018, Vol 2, Issue
Abstract
This article discovers mediation as the effective alternative dispute resolution method. The historical background of this institute development in Ukraine and worldwide is described. Mediation, although considered an «unconventional» way of resolving disputes, appeared earlier than the courts. For the first time mediation appears in ancient China and India. Also, such dispute settlement institution existed in ancient Greece and Rome. The establishment of a modern model of mediation is associated with countries of common law – the United Kingdom, the United States of America and Australia. Also, the concept of “mediation” and “mediation model” are disclosed in the article. The mediation is a process, during which the parties engage a third person or persons in order to assist them in the peaceful settlement of disputes arising out of contract or other legal relationships. There are a number of criteria for mediation’s classification. For example, mediation can be private and integrative (depending on the subject of activity); judicial and out-of-court; mandatory and optional. There were several attempts to implement mediation as the alternative dispute resolution method in Ukraine. All they were unsuccessful because of low level of legal culture; insufficient level of trust in this service; lack of citizens’ knowledge about mediation, its benefits as an alternative to litigation; the positions of the parties that do not wish to compromise; the specifics of national justice; the complexity of choosing a mediator as a highly professional person; low level of cooperation with international organizations; lack of proper financial support; lack of specialized legislation. At the same time, the vast majority of countries of the former Soviet Union have already passed mediation laws – for example, Moldova, Law “On Mediation” in 2007; Russian Federation, Law “On Alternative Procedure for Dispute Settlement with the Participation of an Intermediary (Mediation Procedure)” in 2011; the Republic of Kazakhstan, the Law “On Mediation” in 2011; the Republic of Belarus, Law “On Mediation” in 2014. The basis for the mediation’s institution implementation is Art. 55 of the Constitution of Ukraine, which states that everyone has the right, by any means not prohibited by law, to protect their rights and freedoms from violations and unlawful encroachments. Other acts of Ukrainian legislation do not prohibit and do not allow mediation. In Ukraine existed at least four legislation drafts “On mediation”, but none of them none of them was adopted because of non-compliance with international standards. The authors believe that a large number of legislation drafts “On mediation” testify to the readiness of the Ukrainian society to accept such an alternative way of resolving disputes. Therefore, the authors are considered that the adoption of the law “On mediation” will help to increase the authority of the judiciary and adhere to the principle of legal certainty in our state.
Authors and Affiliations
А. С. Славко, О. А. Холод
Keywords
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